Trial on the Merits.
Once the court-martial members are selected, the case is ready to proceed"on the merits," that is, evidence will be presented about the guilt or innocence of theservicemember. As with any civilian case, the military prosecutor (called a "trial counsel") presents evidence on the charges. The servicemember on trial (called "the accused") mayconfront this evidence and cross-examine any witnesses. The servicemember may also presentevidence and, through the court-martial, compel witnesses to appear.
Rules Of Evidence.
What evidence is admissible in a court-martial is spelled out in the MilitaryRules of Evidence (MRE). As required by the UCMJ, these rules are closely patterned after theFederal Rules of Evidence used in United States District Courts for civilian cases.
In all special and general court-martial cases, a military attorney, called a"defense counsel," represents the servicemember on trial. [Military attorneys are also known as“judge advocates.”] This attorney is assigned free of charge to the servicemember. Theservicemember may also request a specific military attorney to join his defense team and, if available, that attorney will also be assigned free of charge to the defense team. Finally, at hisown expense, the servicemember may hire a civilian attorney (even so, the military attorneysremain assigned to the case).
Closing Arguments and Burden Of Proof.
Mirroring the practice in civilian courts, once both prosecution and defense counsel have presented their evidence, they get to make "closingarguments." Following closing arguments, the military judge will instruct the court-martialmembers about the law and direct them to begin deliberations. Because all servicemembers are presumed to be innocent, the court-martial members must be satisfied that the evidenceestablished the servicemember's guilt "beyond a reasonable doubt."
Deliberations and Voting.
One departure from civilian cases arises in the way the court-martialmembers vote. Most civilian court systems require the jurors to vote unanimously to convict.Because of the need for expeditious resolution of cases, Congress directed that a vote of "two-thirds" of the court-martial members is needed before the accused may be found guilty of any offense charged. If the vote is less than a two-thirds to convict, a verdict of “not guilty” isrequired. As such, the military does not experience “hung juries,” as do civilian jurisdictions.However, death penalty cases require a unanimous verdict. Voting is done by secret, written ballot. Although court-martial members are usually of different ranks, they are not permitted touse superiority of rank to influence or pressure another member.
If the servicemember is convicted of any offense, the case proceedsimmediately to the issue of sentencing. This is different from most civilian courts, wheresentencing is delayed several weeks pending the completion of a presentencing report. Inmilitary cases, there is no presentencing report. Rather the prosecution and defense are expectedto be prepared for this possibility and be ready to present evidence about the convictedservicemember and the offense.Sentencing evidence includes the impact of the crime (both on a victim, and on a unit's disciplineand morale), the servicemember's duty performance history, and extenuating or mitigatingcircumstances. Both the prosecution and defense may call witnesses. The accused may also